Sara Eardley v. Cambridge Health Alliance (SPR 20230914)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 18, 2023 SPR23/0914 Andrew M. Fuqua, Esq. General Counsel and Records Access Officer Cambridge Health Alliance 1493 Cambridge Street Cambridge, MA 02139 Dear Attorney Fuqua: I have received the petition of Sara Eardley, of AIM Targeted Intelligence, appealing the response of the Cambridge Public Health Commission (Commission) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 25, 2023, Ms. Eardley requested “[c]opies of all responses to the RFP, including technical and cost/pricing proposals [and] [a] copy of the awarded contract.” On February 27, 2023, the Commission responded and indicated that were withholding the requested records pursuant to Exemption (a). Unsatisfied with the Commission’s response, Ms. Eardley petitioned this office and this appeal, SPR23/0914, was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Andrew M. Fuqua, Esq. SPR23/0914 Page 2 May 18, 2023 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Commission February 27th response In the Commission’s February 27, 2023, response they indicated that they were withholding responsive records pursuant to Exemption (a). Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. Under Exemption (a), the Department cites St. 1996, c. 147, § 6(c) and G. L. c. 111, § 205(b). St. 1996, c. 147 § 4(c) provides in pertinent part: No vacancy in the membership of the board shall impair the right of a quorum to exercise the powers of the commission. A majority of the members of the board shall constitute a quorum and the affirmative vote of a majority of the members voting at a meeting at which a quorum is present shall be necessary for any action taken by vote of the board.

Andrew M. Fuqua, Esq. SPR23/0914 Page 3 May 18, 2023 The board shall annually elect one of its members as chairman and such other officers as it deems necessary. The provisions of sections twenty-three A to twenty-three C, inclusive, of chapter thirty-nine of the General Laws shall apply to meetings of the board and the provisions of section ten of chapter sixty-six of the General Laws relating to the availability of public records as defined in clause Twenty-sixth of section seven of chapter four of the General Laws shall apply to the commission; provided, however, that all writings and other records concerning the following shall not be deemed to be public records for the purposes of said section ten and executive sessions may be held to discuss or implement the following: peer review proceedings; credentialing; rates and charges; third-party payor contracts; medical records; and marketing strategies, strategic plans or other plans, analyses, evaluations, data or programs if disclosure is deemed by the board to be likely to give an unfair competitive or bargaining advantage to any person or entity. The commission shall not be deemed to be an agency for the purposes of chapter thirty A of the General Laws or a governmental body for the purposes of chapter two hundred and sixty-eight B of the General Laws. St. 1996, c. 147 § 4(c). G. L. c. 111, § 205(b) provides in pertinent part: Information and records which are necessary to comply with risk management and quality assurance programs established by the board of registration in medicine and which are necessary to the work product of medical peer review committees, including incident reports required to be furnished to the board of registration in medicine or any information collected or compiled by a physician credentialing verification service operated by a society or organization of medical professionals for the purpose of providing credentialing information to health care entities shall be deemed to be proceedings, reports or records of a medical peer review committee for purposes of section two hundred and four of this chapter and may be so designated by the patient care assessment coordinator; provided, however, that such information and records so designated by the patient care assessment coordinator may be inspected, maintained and utilized by the board of registration in medicine, including but not limited to its data repository and disciplinary unit. Such information and records inspected, maintained or utilized by the board of registration in medicine shall remain confidential, and not subject to subpoena, discovery or introduction into evidence, consistent with section two hundred and four… G. L. c. 111, § 205(b). In the Commission’s February 27, 2023, response they state the following: Massachusetts General Law, Chapter 66, Section 10 (the "Public Records Law") provides that certain categories of records (as set forth in Massachusetts General Law, Chapter 4, Section 7) are exempt from disclosure. Specifically, Massachusetts General Law, Chapter

Andrew M. Fuqua, Esq. SPR23/0914 Page 4 May 18, 2023 4, Section 7(26)(a) exempts records "exempted from disclosure by statute." CHA was created by and exists pursuant to Massachusetts law, Chapter 147 of the Acts of 1996 (the "CHA Act"). Section 4(c) of the CHA Act exempts records related to peer review proceedings, which, pursuant to Massachusetts General Law, Chapter 111, Sections 205 and 205, includes any contract entered into in connection with the RFP. Section 4(c) also exempts records that would likely give an unfair competitive or bargaining advantage to any person or entity. The website for AIM Targeted Intelligence your company provides strategic intelligence services, including "competitive research and analysis [and] customized intelligence." Therefore, I am denying your requests for the above-listed documents. Based on the Commission’s response, it is unclear how the requested records fall within the type of records contemplated by St. 1996, c. 147 § 6(c) or G. L. c. 111, § 205(b). The Commission merely cites the statutes without sufficient explanation as to their applicability to the responsive records. A records custodian is required to not only cite an exemption but to specifically explain the applicability of the exemption to the requested records for compliance with the Public Records Law. G. L. c. 66, § 10(b)(iv). It is additionally uncertain what type(s) of records associated with the requested records were withheld from disclosure. To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); see also 950 C.M.R. 32.06(3)(c)(4). Conclusion Accordingly, the Commission is ordered to provide Ms. Eardley with a response to her request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us Sincerely, Manza Arthur Supervisor of Records cc: Sara Eardley